Citation Nr: 0942537
Decision Date: 11/09/09 Archive Date: 11/17/09
DOCKET NO. 05-33 587 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical Center in Bay Pines,
Florida
THE ISSUE
Entitlement to reimbursement of medical expenses by the
Department of Veterans Affairs (VA) for the cost of non-VA
medical treatment at a private medical facility from March 22
to April 19, 2005.
(The issue of entitlement to service connection for a neck
disorder will be the subject of a separate Board decision.)
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. D. Deane, Counsel
INTRODUCTION
The Veteran served on active duty from October 1963 to
October 1966.
This matter is on appeal from determinations by the
Department of Veterans Affairs Medical Center (VAMC) in Bay
Pines, Florida, also known as the Bay Pines VA Health Care
System (BPVAHCS), and the VA Outpatient Clinic (VAOPC) in
Fort Myers, Florida.
In accordance with the Veteran's request, a videoconference
hearing was scheduled before a Veterans Law Judge at the RO
in December 2008. He failed to report to the scheduled
hearing. As such, his request for the hearing will be
considered withdrawn. 38 C.F.R. § 20.704(d) (2009).
Accordingly, the Veteran's claim will be adjudicated without
further delay based upon all the evidence presently of
record.
FINDINGS OF FACT
1. The Veteran incurred medical expenses due to outpatient
treatment at a private medical facility from March 22 to
April 19, 2005; he did not receive prior VA authorization for
such treatment.
2. At the time of the unauthorized treatment, the Veteran
was receiving nonservice-connected pension benefits,
effective since July 21, 2000.
3. The outpatient treatment at a private medical facility
from March 22 to April 19, 2005, was not rendered in a
medical emergency of such a nature that delay would have been
hazardous to the Veteran's life or health.
4. From March 22 to April 19, 2005, a VA facility was
feasibly available for treatment.
CONCLUSION OF LAW
The criteria for reimbursement of unauthorized medical
treatment incurred at a private medical facility from March
22 to April 19, 2005, have not been met. 38 U.S.C.A. §§
1703, 1725, 1728, 5103, 5103A, 5107(b) (West 2002 & Supp.
2009); 38 C.F.R. §§ 17.52, 17.54, 17.120-132, 17.1000-1008
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran is seeking entitlement to payment or
reimbursement from VA concerning outpatient medical treatment
incurred at a private medical facility from March 22 to April
19, 2005.
In claims involving payment/reimbursement by VA for medical
expenses incurred as a result of treatment at a private
facility, it must first be determined whether the services
for which payment is sought were authorized by VA. 38
U.S.C.A. § 1703(a) (2009). If not authorized, it must be
determined whether the claimant is otherwise entitled to
payment or reimbursement for services not previously
authorized. 38 U.S.C.A. §1728(a) (West 2002); the Veterans
Millennium Healthcare and Benefits Act, 38 U.S.C.A. § 1725
(2002); see also Hennessey v. Brown, 7 Vet. App. 143 (1994).
In this case, the evidence does not suggest that prior
authorization for private outpatient medical treatment from
March 22 to April 19, 2005, was obtained. Thus, the
pertinent issue is whether the Veteran is eligible for
payment or reimbursement for medical services that were not
previously authorized. The Board will consider 38 U.S.C.A. §
1728 and 1725 in turn.
Under 38 U.S.C.A. § 1728, generally, in order to be entitled
to payment or reimbursement of medical expenses incurred at a
non-VA facility, a claimant must satisfy three conditions.
There must be a showing that three criteria are met:
(a) the care and services rendered were either: (1) for an
adjudicated service-connected disability, or (2) for a
nonservice-connected disability associated with and held to
be aggravating an adjudicated service-connected disability,
or (3) for any disability of a veteran who has a total
disability, permanent in nature, resulting from a service-
connected disability, or (4) for any injury, illness, or
dental condition in the case of a veteran who is
participating in a rehabilitation program and who is
medically determined to be in need of hospital care or
medical services for reasons set forth in 38 C.F.R. §
17.47(i) (formerly § 17.48(j) (2000)); and
(b) the services were rendered in a medical emergency of such
nature that delay would have been hazardous to life or
health; and
(c) no VA or other Federal facilities were feasibly available
and an attempt to use them beforehand or obtain prior VA
authorization for the services required would not have been
reasonable, sound, wise, or practicable, or treatment had
been or would have been refused. 38 U.S.C.A. § 1728 (West
2002); 38 C.F.R. § 17.120 (2009); see also Zimick v. West, 11
Vet. App. 45, 49 (1998).
The Veterans Millennium Health Care and Benefits Act, which
became effective in May 2000, also provides general authority
for reimbursement for the reasonable value of emergency
treatment furnished in a non-VA facility to those veterans
who are active VA health-care participants (i.e., enrolled in
the annual patient enrollment system and recipients of a VA
hospital, nursing home, or domiciliary care under such system
within the last 24-month period) and who are personally
liable for such non-VA treatment and not eligible for
reimbursement under the provisions of 38 U.S.C.A. § 1728. 38
U.S.C.A. § 1725 (West 2002); 38 C.F.R. §§ 17.1000-1008
(2009).
Pursuant to 38 C.F.R. § 17.1002, payment or reimbursement
under 38 U.S.C.A. § 1725 for emergency treatment for
nonservice-connected disabilities in non-VA facilities is
made only if all of the following criteria are met:
(a) The emergency services were provided in a hospital
emergency department or similar facility held out as
providing emergency care to the public;
(b) The claim for payment or reimbursement for the initial
evaluation and treatment is for a condition of such nature
that a prudent layperson would have reasonably expected that
delay in seeking immediate medical attention would have been
hazardous to life or health (this standard would be met if
there was an emergency medical condition manifesting itself
by acute symptoms of sufficient severity (including severe
pain) that a prudent layperson who possesses an average
knowledge of health and medicine could reasonably expect the
absence of immediate medical attention to result in placing
the health of the individual in serious jeopardy, serious
impairment to bodily function, or serious dysfunction of any
bodily organ or part);
(c) A VA or other Federal facility/provider was not feasibly
available and an attempt to use them beforehand would not
have been considered reasonable by a prudent layperson (as an
example, these conditions would be met by evidence
establishing that a veteran was brought to a hospital in an
ambulance and the ambulance personnel determined that the
nearest available appropriate level of care was at a non-VA
medical center);
(d) The claim for payment or reimbursement for any medical
care beyond the initial emergency evaluation and treatment is
for a continued medical emergency of such a nature that the
veteran could not have been safely discharged or transferred
to a VA or other Federal facility (the medical emergency
lasts only until the time the veteran becomes stabilized);
(e) At the time the emergency treatment was furnished, the
veteran was enrolled in the VA health care system and had
received medical services under authority of 38 U.S.C.
chapter 17 within the 24-month period preceding the
furnishing of such emergency treatment;
(f) The veteran is financially liable to the provider of
emergency treatment for that treatment;
(g) The veteran has no coverage under a health-plan contract
for payment or reimbursement, in whole or in part, for the
emergency treatment (this condition cannot be met if the
veteran has coverage under a health-plan contract but payment
is barred because of a failure by the veteran or the provider
to comply with the provisions of that health-plan contract,
e.g., failure to submit a bill or medical records within
specified time limits, or failure to exhaust appeals for a
denial of payment);
(h) If the condition for which the emergency treatment was
furnished was caused by an accident or work-related injury,
the claimant has exhausted without success all claims and
remedies reasonably available to the veteran or provider
against a third party for payment of such treatment; and the
veteran has no contractual or legal recourse against a third
party that could reasonably be pursued for the purpose of
extinguishing, in whole or in part, the veteran's liability
to the provider; and
(i) The veteran is not eligible for reimbursement under 38
U.S.C. 1728 for the emergency treatment provided (as
discussed above, 38 U.S.C. § 1728 authorizes VA payment or
reimbursement for emergency treatment to a limited group of
veterans, primarily those who receive emergency treatment for
a service-connected disability). 38 U.S.C.A. § 1725 (West
2002); 38 C.F.R. § 17.1002 (2009).
The above-listed criteria are conjunctive, not disjunctive;
all criteria must be met. Melson v. Derwinski, 1 Vet. App.
334 (1991) (use of the conjunctive "and" in a statutory
provision meant that all of the conditions listed in the
provision must be met).
The Board notes that the provisions of 38 U.S.C.A. § 1725
reflect a legislative change in that statute, effective
October 10, 2008. Specifically, the change of interest is
that the word "shall" in the first sentence, replaced the
word "may." This made the payment or reimbursement by VA
of treatment non-discretionary, if a veteran satisfied the
requirements for such payment.
That is, under the version of § 1725 in effect prior to
October 10, 2008, payment of such medical expenses was not
mandatory even if all conditions for the payment were met.
Under both versions, the conditions set out in the remainder
of the statute must be met in order for VA to make payment or
reimbursement.
Under both the former and revised versions of § 1725, the
definition of the term "emergency treatment" was and is
defined as medical services furnished, in the judgment of the
Secretary, (1) when Department or other Federal facilities
are not feasibly available and an attempt to use them
beforehand would not be reasonable; (2) when such services
are rendered in a medical emergency of such nature that a
prudent layperson reasonably expects that delay in seeking
immediate medical attention would be hazardous to life or
health; and (3) until such time as the veteran can be
transferred safely to a Department facility. 38 U.S.C.A. §
1725(f)(1)(B).
A revision was made to § 1725 as to how long emergency
treatment continued, once the definition of "emergency
treatment" was met. Under the former version, treatment is
considered emergent until the veteran is transferred safely
to a Department facility or other Federal facility and such
facility is capable of accepting such transfer.
Under the revised version, "emergency treatment" is
continued until such time as the veteran can be transferred
safely to a Department facility or other Federal facility and
such facility is capable of accepting such transfer; or (ii)
such time as a Department facility or other Federal facility
accepts such transfer if--(I) at the time the veteran could
have been transferred safely to a Department facility or
other Federal facility, no Department facility or other
Federal facility agreed to accept such transfer; and (II) the
non-Department facility in which such medical care or
services was furnished made and documented reasonable
attempts to transfer the veteran to a Department facility or
other Federal facility.
The United States Court of Appeals for Veterans Claims (the
Court) recently held that both medical and lay evidence may
be considered in a prudent-layperson evaluation and that
neither 38 U.S.C.A. § 1725 nor 38 C.F.R. § 17.1002 required a
medical finding of an emergency. Swinney v. Shineski, 08-
0531, 2009 WL 3193146 (Vet. App. Oct. 7, 2009).
A Bite Case Report from the local health department showed
the Veteran was bitten by a dog on the left leg in early
March 2005. VA treatment records dated three days later
detailed that he was bitten below his left knee the week
before by a pit bull. He complained of pain and discomfort
in the knee.
On physical examination, his left lateral knee was reported
to be in various stages of healing wounds with two puncture
marks along the lateral tendon area of the knee and patella.
X-ray reports revealed no evidence of joint or soft tissue
swelling. It was noted that he sought no other care over the
weekend and reported the incident to animal control, who was
supervising his care.
Evidence of record reflected that the Veteran had outpatient
treatment, consisting of rabies vaccinations, at a non-VA
medical facility from March 22 to April 19, 2005. A medical
bill from that facility contained a written notation that he
had no insurance and that he would forward the bills to VA
for reimbursement himself. An undated printout from VA
showed that the Veteran was receiving nonservice-connected
pension benefits at the time of the unauthorized treatment.
In July 2005, VA received medical bills and medical records
submitted for payment related to outpatient treatment,
consisting of rabies vaccinations, from March 22 to April 19,
2005, which was denied in August 2005 on the basis that there
was no official VA authorization for the Veteran to have
these procedures.
According to a file review conducted by the Chief Medical
Officer at BPVAHCS in October 2006, it was determined that
the Veteran's presentation was non-emergent and that other VA
facilities were available for medical services from March 22
to April 19, 2005. It was further noted that the injections
were not performed in an emergency room or urgent care
center. Additionally, the VA treatment records did not
reflect that he ever inquired about rabies shots.
The Board notes that the outpatient care rendered to the
Veteran for rabies vaccinations from March 22 to April 19,
2005, was not for a service-connected disability. Moreover,
it does not appear from the record that he has been awarded
service connection for any disorder or disability at any
time. Thus, this disorder was not associated with and/or
aggravating any service-connected disability.
He also does not have a total service-connected disability
permanent in nature, and the record does not reflect that
this was an injury, illness, or dental condition in the case
of a veteran who was participating in a rehabilitation
program and who was medically determined to be in need of
hospital care or medical services for reasons set forth in 38
C.F.R. § 17.47(i).
After a review of the file, the Board finds that the Veteran
does not meet the initial requirement for payment or
reimbursement under 38 U.S.C.A. § 1728, also shown in 38
C.F.R. § 17.120(a) (2009). Thus, an analysis of the
remaining requirements is not necessary. As all three
criteria must be met in order to establish entitlement to
reimbursement for medical expenses under 38 U.S.C.A. § 1728,
he cannot establish reimbursement under this statute.
Zimick, 11 Vet. App. at 45, 49.
In this case, there is no dispute as to how long any emergent
treatment was continued because, as will be discussed below,
the criteria set forth in the inclusive list at 38 C.F.R. §
17.1002 are not met. Therefore, although the Veteran has not
been apprised of the revised version of § 1725, the Board
finds that there is no prejudice to him by this Board
decision. Bernard v. Brown, 4 Vet. App. 384 (1993).
Further, the Board need not determine whether § 1725 as
revised, effective October 10, 2008, is to be given
retroactive effect. Regardless of whether the version
effective prior to October 10, 2008, or the version effective
since October 10, 2008, is applied, the result is the same.
For the reasons set forth below, the Veteran's appeal
concerning payment or reimbursement under 38 U.S.C.A. § 1725
is denied.
As noted above, payment or reimbursement under 38 U.S.C.A. §
1725 for emergency treatment for non-service-connected
disabilities in non-VA facilities is made only if all of the
criteria outlined in 38 C.F.R. § 17.1002 are fulfilled. In
this case, the Veteran failed to meet subsection (b) as
delineated in 38 C.F.R. § 17.1002.
Evidence of record does not indicate that the Veteran was
taken to the emergency room or received any urgent care on
the date of his dog bite. Upon receiving VA treatment for
his dog bite wound three days later, there were not any
abnormal cardiovascular or respiratory findings or any
evidence of joint or soft tissue swelling at the trauma site.
His primary symptoms associated with a dog bite were listed
as discomfort and pain.
The Veteran specifically indicated that he had not sought
care for his dog bite wounds on the date of occurrence and
only notified animal control of the injury. He was noted to
inform a staff nurse at the VAOPC that animal control was
supervising his care.
Evidence of record also does not demonstrate that outpatient
care, consisting of rabies injections, from March 22 to April
19, 2005 at a non-VA facility was rendered in a medical
emergency of such nature that delay would have been hazardous
to life or health. As noted above, a file review by a
medical officer in October 2006 determined that the Veteran's
presentation was non-emergent and that other VA facilities
were available for medical services at that time.
It is not reasonable to conclude that a prudent layperson
with average knowledge of health and medicine could
reasonably expect that if immediate care were forestalled, he
would be placing himself in serious jeopardy, causing serious
impairment to bodily functions, or serious dysfunction of any
bodily organ or part. Based on the foregoing evidence, the
Board has determined that a totality of the evidence showed
his condition was nonemergent at the time of the unauthorized
treatment, as contemplated under the Millennium Act.
As the criteria under the Millennium Act are conjunctive,
this failure to satisfy 38 C.F.R. § 17.1002(b) precludes a
grant of the requested payment/reimbursement, and an analysis
of the remaining factors is thus unnecessary.
The Board has also considered the Veteran's assertion that he
did not seek initial treatment for his dog bite from a VA
facility as it was already closed that Friday afternoon. It
was further asserted that after reporting the injury to
animal control, he treated his dog bite wounds with over the
counter medications over the weekend and sought treatment at
the VA facility three days later. He has contended that
animal control as well as the VA facility informed him that
VA did not administer rabies injections.
In this case, as noted above, a review of VA records does not
document any refusal to administer rabies injections at the
VAOPC or any authorization to go to a non-VA facility for
those injections. Further, it was determined that two VA
facilities were available for medical services from at the
time of the unauthorized treatment.
In rendering a decision on appeal, the Board must analyze the
credibility and probative value of the evidence, account for
the evidence which it finds to be persuasive or unpersuasive,
and provide the reasons for its rejection of any material
evidence favorable to the claimant. See Gabrielson v. Brown,
7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.
App. 49, 57 (1990).
Competency of evidence differs from weight and credibility.
The former is a legal concept determining whether testimony
may be heard and considered by the trier of fact, while the
latter is a factual determination going to the probative
value of the evidence to be made after the evidence has been
admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno
v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v.
Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may
affect the credibility of testimony, it does not affect
competency to testify").
While the Board reiterates that the Veteran is competent to
report symptoms as they come to him through his senses, the
Board nonetheless attributes greater probative weight to the
medical findings of skilled, unbiased, medical professionals
than to his statements made in conjunction with his claim for
reimbursement of medical expenses. See Cartright, 2 Vet.
App. at 25.
In conclusion, the Board finds that the preponderance of the
evidence is against reimbursement or payment for the
unauthorized private outpatient medical treatment that the
Veteran received from a non-VA medical facility from March 22
to April 19, 2005, under the provisions of both 38 U.S.C.A.
§§ 1725 and 1728. Accordingly, the appeal must be denied.
Finally, there is no indication in the Veterans Claims
Assistance Act of 2000 (VCAA) that Congress intended the act
to revise the unique, specific claim provisions of Chapter
17, Title 38 of the United States Code. 38 C.F.R. §§ 17.120-
132 (2009).
However, the Court has held that VCAA is not applicable to
appeals involving the distribution of benefits, such as
accrued benefits, as opposed to appeals involving the actual
entitlement to the benefit. Sims v. Nicholson, 19 Vet. App.
453 (2006). In addition, the Court found that it was clear
that a "claimant" for VCAA purposes includes an individual
seeking proceeds of a deceased veteran's National Service
Life Insurance (NSLI) policy. Gordon v. Nicholson, 21 Vet.
App. 270, 278-83 (2007). The Board notes that claims for
reimbursement of medical expenses do involve a claimant
seeking actual entitlement to a benefit.
As provided for by the VCAA, VA has a duty to notify and
assist claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2009).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
This notice must be provided prior to an initial unfavorable
decision on a claim by the RO. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
When VCAA notice is delinquent or erroneous, the "rule of
prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2).
In the event that a VA notice error occurs regarding the
information or evidence necessary to substantiate a claim, VA
bears the burden to show that the error was harmless.
However, the appellant bears the burden of showing harm when
not notified whether the necessary information or evidence is
expected to be obtained by VA or provided by the appellant.
Shinseki v. Sanders, 556 U.S. ___ (2009).
Here, the duty to notify was not satisfied prior to the
initial unfavorable decision on the claim by the VAOPC.
Under such circumstances, VA's duty to notify may not be
"satisfied by various post-decisional communications from
which a claimant might have been able to infer what evidence
the VA found lacking in the claimant's presentation."
Rather, such notice errors may instead be cured by issuance
of a fully compliant notice, followed by readjudication of
the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006) (where notice was not provided prior to the RO's
initial adjudication, this timing problem can be cured by the
Board remanding for the issuance of a VCAA notice followed by
readjudication of the claim by the RO); see also Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a
fully compliant VCAA notification followed by readjudication
of the claim, such as an SOC or SSOC, is sufficient to cure a
timing defect).
In this case, the VCAA duty to notify was satisfied
subsequent to the initial VAOPC decision by way of a letter
sent to the Veteran in November 2006 that fully addressed all
four notice elements. The letter informed him of what
evidence was required to substantiate the claim and of his
and VA's respective duties for obtaining evidence.
Therefore, he was "provided the content-complying notice to
which he [was] entitled." Pelegrini, 18 Vet. App. at 122.
Furthermore, the claim was readjudicated, and a supplemental
statement of the case was issued in January 2008.
Consequently, the Board finds that the duty to notify has
been satisfied. Therefore, adequate notice was provided to
the Veteran prior to the transfer and certification of his
case to the Board and complied with the requirements of 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).
Next, VA has a duty to assist a veteran in the development of
the claim. This duty includes assisting him or her in the
procurement of service treatment records and other pertinent
records, and providing an examination when necessary. See
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009).
After a careful review of the file, the Board finds that all
necessary development has been accomplished, and therefore
appellate review may proceed without prejudice to the
Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The VAMC
has obtained all VA and private treatment records relevant to
the claim. The Veteran submitted statements in support of
his claim. Therefore, the available records and medical
evidence have been obtained in order to make an adequate
determination as to this claim.
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance is required to fulfill VA's
duty to assist in the development of the claim. Smith v.
Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
Entitlement to reimbursement of medical expenses by the
Department of Veterans Affairs (VA) for the cost of non-VA
medical treatment at a private medical facility from March 22
to April 19, 2005, is denied.
____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs